On Christmas Day, I read an article by Arianna Jeret titled “How to Make Your Divorce as Expensive as Possible” and found it to be extremely accurate.
Ms. Jeret starts out by advising people of the obvious fact that two households cost more to support than one. In fact, according to Andrew Hoffman, a Certified Divorce Financial Analyst, “A family’s income needs to increase by almost a third to maintain the pre-divorce standard of living in two households.” Therefore, it is no surprise that fear of financial ruin frequently impacts people’s decision to divorce, when they divorce, and how they divorce. It is important to note that this increase in expenses does not include the legal fees and costs involved in the divorce itself.
Unless the couple is in a financial position in which they already save enough money (not including retirement savings) or additional income will be earned by one or both spouses to defray that significant increase in expenses, people are sorely mistaken if they expect the “marital standard of living” to continue following separation and divorce.
That being said, depending upon the family’s circumstances, both spouses may well be able to reduce their standard of living such that they can afford to divorce and move forward with their lives. After all, as Ms. Jeret says, “That simply doesn’t mean it isn’t doable, and it doesn’t mean it isn’t worth it.”
In fact, “when asked how much [money per year it would take to make them happy], just over half of people surveyed in CNN Money’s American Dream poll said it would take less than $100,000. Nearly a quarter of the people who took the poll, conducted by ORC International, said between $50,000 and $74,999 would work. That calls to mind the results of a Princeton study, which found that emotional wellbeing rose with income, but not much beyond $75,000. In other words, past a certain income level, your happiness comes from other factors.”
Therefore, if their finances are such that their emotional wellbeing won’t be impacted to a great extent (if at all) by a divorce, their “fear of financial ruin” may be unfounded and they may need evaluate whether or not happiness is a priority of theirs.
That being said, both former President Ronald Reagan and former Vice President Al Gore are absolutely correct that “fear is the most powerful enemy of reason.” Moreover, this is true, regardless of whether the fear is real, exaggerated, or completely imagined. “The only way to deal with fear is to face it. Avoiding it prevents us from moving forward—it makes us anxious…. Face your fears and anxieties so they don’t become debilitating.”
People often do things that they learn to regret because they acted out of fear, rather than dealing with it. It bears mentioning that according to Brene’ Brown, Ph.D., LMSW, “Shame breeds fear.”
During the course of her research, Dr. Brown discovered the following twelve categories of shame: (1) appearance & body image; (2) money & work; (3) motherhood/fatherhood; (4) family; (5) parenting; (6) mental & physical health (including addiction); (7) sex; (8) aging; (9) religion; (10) speaking out; (11) surviving trauma; and (12) being stereotyped & labeled. Consider how many of these categories of shame come into play in divorce situations.
Meanwhile, fear and anger guarantees aggressive lawyers a secure future.
As Ms. Jeret states, “The average cost of a divorce in California was most recently estimated to be $95,000 total — $47,500 per spouse. In Los Angeles County, the average length of a litigated divorce (i.e., a traditional courtroom-based with an attorney representing each spouse) is 3-4 years. Those statistics are not only insane, they are entirely unnecessary.”
Moreover, it is completely false and misleading to not include all the post-judgment legal fees and expenses as part of a litigated divorce because they are predictable with a win/lose dynamic. Costs will continue to rise as long as there are rematches, not to mention the total allocation of the court budget needed by the family law courts as a result.”
Litigation-centered family law cases, including divorce, child custody and spousal support, are like ‘vampires’ to the legal system. Under the current family law system, either party in a family law matter can keep returning to court for a ‘rematch’ long after the ‘conclusion’ of the divorce or paternity case. This open-ended process can destroy family dynamics and bankrupt families in the process, not to mention the havoc it wreaks on the court system.”
In her article, Ms. Jeret goes on to say the following:
“And yet, I still regularly encounter individuals who will say in response, ‘I hear you, but I just want to make sure I get what I am entitled to. I don’t trust my spouse not to screw me over if we mediate.’ I am still unclear as to why anyone trusts an attorney they have never met, or an overwhelmed court system in which you are no more than another case number, not to try to screw them over any more than a spouse who has a mutual interest in making sure both of you and your children can all stay afloat following the divorce.”
Interestingly enough, hostage negotiators use mediation techniques when negotiating with hostage takers. If hostage negotiators conducted themselves in an adversarial manner, the hostage takers would almost certainly kill the hostages. By the way, the same is true of traditional lawyering versus mediation and collaboration. Traditional lawyering is adversarial, and therefore, tends to exacerbate conflict and increase distrust in order to obtain a result.
The damage caused by traditional lawyering is to interpersonal relationships, family dynamics, and draining of finances, among other things.
While a family’s standard of living may well decrease because “the amount of money it takes to support two households after divorce is always going to be higher than the amount of money it takes to support one during a marriage,” the insane amount of money spent litigating divorces is unnecessary. Mediation is frequently a fraction of the cost of litigation, as is the collaborative law process – at least in California. The distinction has to do with the divorcing spouses working with each other to resolve their issues, rather than fighting against each other.
People need to realize that the higher the conflict level, the more time it takes to resolve a dispute and the more it costs, both financially and emotionally. Lawsuits and litigated negotiation are processes based upon a win/lose paradigm and since nobody wants to lose, they inherently tend to escalate the conflict level in order to resolve a legal dispute. Mediation is essentially conflict intervention, and well-qualified mediators have the skills to de-escalate the level of conflict and facilitate settlement of the dispute.
At the ABA Section of Family Law 2015 Fall CLE Conference, we were advised that approximately one out of every 200 family law cases goes to trial, nationally.
If I were diagnosed with cancer and my doctor told me that I had a 99.5% chance of beating the cancer, it wouldn’t make any sense for me to be planning my funeral. It is just as foolish for divorcing couples to assume that their divorce will fall within the one-half of one percent that go to trial. By the same token, they shouldn’t be designing their case based upon such a belief, unless they want their fears to become self-fulfilling prophecies.
For example, in a recent hearing pertaining to one spouse’s request for an attorneys’ fees contribution against the other, Los Angeles Superior Court Judge Mark A. Juhas asked, “At what point does Mr. Gregora have to pay for [Feldstein] chasing a theory?” In that case, after allegedly incurring almost $4 million with seven different attorneys “chasing illusions,” Feldstein will allegedly have trouble paying some of her extensive outstanding fees.
Think about this for a moment because if Feldstein incurred almost $4 million in legal fees and costs, how much do you think her husband incurred? How much better off would both spouses have been, had they not incurred such substantial legal fees fighting against each other because of what appeared to have been Feldstein’s imagined fears that she might not get that which she believes she is entitled? Who ultimately benefited from Feldstein’s apparent failure to face her fears?
Does it make more sense for people to retain aggressive lawyers who make a great deal of money by allowing their clients’ emotions to control them or for them to retain professionals who help them to face their fears, put things into perspective, and otherwise control their emotions?
Outcomes are typically determined by the way in which the ‘game’ is designed. Therefore, shouldn’t things be designed to achieve a more desired outcome?